Flanagan v. City of Dall.

• Decision Date: 23 September 2014
• Docket Number: No. 3:13–CV–4231–M–BK.,3:13–CV–4231–M–BK.
• Citation: 48 F.Supp.3d 941
• Parties: Collette L. FLANAGAN and Ronderaline S. Allen, Plaintiffs, v. CITY OF DALLAS, TEXAS and Clark Staller, Defendants.
• Court: U.S. District Court — Northern District of Texas

48 F.Supp.3d 941

Collette L. FLANAGAN and Ronderaline S. Allen, Plaintiffs

v.CITY OF DALLAS, TEXAS and Clark Staller, Defendants.

No. 3:13–CV–4231–M–BK.

United States District Court, N.D. Texas, Dallas Division.

Signed Sept. 23, 2014.

Daryl K. Washington, The Law Offices of Daryl K. Washington P.C., Matthew J. Kita, Dallas, TX, for Plaintiffs.

Grant Hugh Brenna, J. G. Schuette, Dallas City Attorney's Office, Dallas, TX, for Defendants.

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

BARBARA M.G. LYNN, District Judge.

The United States Magistrate Judge made Findings, Conclusions and a Recommendation in this case. No objections were filed. The District Court reviewed the proposed Findings, Conclusions and Recommendation for plain error. Finding none, the Court ACCEPTS the Findings, Conclusions and Recommendation of the United States Magistrate Judge.

Defendant City of Dallas's motion to dismiss is GRANTED in part. Plaintiffs' racial profiling and excessive force claims based on a policy of racial profiling are DISMISSED WITHOUT PREJUDICE. Plaintiffs may replead such claims in an effort to state a claim by October 6, 2014. Defendants' claims under the Fourteenth Amendment, not the Fourth Amendment, are DISMISSED WITHOUT PREJUDICE. The balance of Defendants' Motion to Dismiss is DENIED.

FINDINGS, CONCLUSIONS AND RECOMMENDATION

RENÉE HARRIS TOLIVER, United States Magistrate Judge.

This case has been referred to the undersigned for pretrial management. (Doc. 28). The cause is now before the Court for a recommendation on Defendant City of Dallas's Motion Pursuant to Rule 12(b)(6) to Dismiss the Plaintiffs' Federal Claims. (Doc. 19). For the reasons that follow, the Court recommends that the motion be GRANTED IN PART.

I. BACKGROUND

Plaintiffs' state and federal constitutional claims against Defendant City of Dallas (“the City”) arise out of the shooting death of Clinton Allen, Plaintiffs' child, during a struggle with Dallas Police Department (“DPD”) Officer Clark Staller. Plaintiffs allege in their first amended complaint that on the day of the incident in March 2013, Allen had been visiting Mandria Kelly at her apartment and made plans to return later. (Doc. 15 at 4). After Allen left the residence and then returned, Kelly became upset and called 911 at 12:26 a.m. to report that “someone was knocking on my door that wouldn't leave,” that she had two children in the house, and that the man was not armed. (Doc. 15 at 4; Doc. 15–1 at 3). Plaintiffs assert, and attach to their amended complaint, Kelly's supporting statement that Officer Staller arrived at the apartment complex and before Kelly gave him any information or a description of Allen, Staller saw an unidentified person walking towards the parking lot, at which point he initiated a foot pursuit, and Kelly heard gunshots 30 seconds later. (Doc. 15 at 4; Doc. 15–1 at 2–3). Plaintiffs allege that Officer Staller had no probable cause or reasonable suspicion to believe that Allen was committing or had committed a crime and when Officer Staller arrived, Allen was attempting to leave. (Doc. 15 at 5). Plaintiffs additionally note that the DPD “shooting summary” states that after Officer Staller gave Allen verbal commands, Allen complied, and Officer Staller holstered his weapon and drew a taser. (Doc. 15 at 11). At some point during their confrontation, Officer Staller used the taser on Allen and then shot him. (Doc. 15 at 10).

Plaintiffs additionally attach to their amended complaint the eyewitness statement of Vickie McKnight–Simpson, who states that Officer Staller told Allen to raise his hands several times, Allen complied and did not act aggressively or fight, but Officer Staller started shooting him repeatedly from several feet away while Officer Staller was backing up. (Doc. 15 at 5; Doc. 15–2 at 2). McKnight–Simpson avers that she overheard Officer Staller tell another officer that he “had to unload and reload another clip.” (Doc. 15–2 at 2). Plaintiffs claim that according to McKnight–Simpson and other witnesses, Allen was complying with Officer Staller's instructions by walking towards him with his hands visible, but Officer Staller nevertheless shot him seven times even though Officer Staller was not in any danger, and Allen had done nothing to cause Officer Staller to fear for his life. (Doc. 15 at 5–6). Plaintiffs aver that there were no signs of visible injuries or bruises to Defendant Staller's body to suggest that the use of deadly force was justified. (Doc. 15 at 11).

Plaintiffs list several instances of Officer Staller's misconduct and complaints against him and contend that the City, the DPD, and DPD Police Chief David Brown knew of Officer Staller's prior misbehavior and lack of training but did nothing to protect Allen and others. (Doc. 15 at 7). Plaintiffs assert that the City and the DPD have a longstanding record of not providing DPD officers with adequate training and not preventing excessive force and extrajudicial killings by DPD officers. (Doc. 15 at 7). Plaintiffs aver that Dallas City Councilman Dwaine Caraway recently confirmed that the City Council and the City delegated policymaking authority for officer training to Chief Brown, and Chief Brown admitted that there is a need for additional officer training. (Doc. 15 at 7–8). Plaintiffs assert that the lack of officer training has resulted in (1) numerous unarmed citizens, particularly minorities, being killed or injured by DPD officers; (2) Dallas being ranked second in the nation in police misconduct incidents; and (3) numerous grand jury investigations and DPD internal affairs investigations. (Doc. 15 at 8 ).

Plaintiffs allege in the first count of their complaint, under the heading “Excessive Force” that Officer Staller unreasonably used excessive force against Allen pursuant to the customs and policies of the DPD regarding the use of deadly force as authorized and/or ratified by Chief Brown. (Doc. 15 at 14). In Count II, under the heading “Racial Profiling,” Plaintiffs allege that the DPD has official customs, policies, and practices authorized and/or ratified by Chief Brown to treat African–Americans cruelly and use deadly force regardless of the circumstances, and Officer Staller acted pursuant to such customs and treated Allen in the manner that he did because Allen was black. (Doc. 15 at 14–15). In Count III, under the heading “Failure to Train,” and elsewhere in their complaint, Plaintiffs allege that the City deprived Allen of his Fourth and Fourteenth Amendment rights by failing to provide proper training to DPD officers in the use of deadly force and foot pursuits. (Doc. 15 at 1, 3, 15–16, 18). They assert that the City's failure to adequately train its employees in these areas reflects a deliberate indifference by the City and Chief Brown to the rights of the City's inhabitants. (Doc. 15 at 16). In short, Plaintiffs assert that the actual practice or custom of the DPD is to “shoot first and ask questions later.” (Doc. 15 at 16). Plaintiffs conclude that the City's failure to properly train DPD officers under Chief Brown's authority was the proximate cause of Allen's death. (Doc. 15 at 18). The City has now moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b) (6).¹ (Doc. 19).

II. APPLICABLE LAW

A plaintiff fails to state a claim for relief under Rule 12(b)(6) when the complaint does not contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In order to overcome a Rule 12(b)(6) motion, a plaintiff's complaint should “contain either direct allegations on every material point necessary to sustain a recovery ... or contain allegations from which an inference may fairly be drawn that evidence on these material points will be introduced at trial.” Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir.1995) (quotation omitted). The complaint should not simply contain conclusory allegations, but must be pled with a certain level of factual specificity, and the district court cannot “accept as true conclusory allegations or unwarranted deductions of fact.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.2000) (quotation omitted). When considering a Rule 12(b)(6) motion, a court may consider documents outside the complaint when they are: (1) attached to the motion to dismiss; (2) referenced in the complaint; and (3) central to the plaintiff's claims. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007).

Section 1983 “provides a federal cause of action for the deprivation, under color of law, of a citizen's ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Livadas v. Bradshaw, 512 U.S. 107, 132, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994). To state a claim under section 1983, Plaintiff must allege facts that show that he has been deprived of a right secured by the Constitution and the laws of the United States, and the defendants were acting under color of state law. See Flagg Bros., Inc. v. Brooks,

436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). When an individual sues a municipality, he can provide fair notice to the defendant as needed to survive a motion to dismiss by, inter alia, describing (1) past incidents of misconduct by the defendant to others; (2) multiple harms that occurred to the plaintiff himself; (3) the involvement of multiple officials in the misconduct; or (4) the specific topic of the challenged policy or training inadequacy. Thomas v. City of Galveston, 800 F.Supp.2d 826, 843–44 (S.D.Tex.2011) (citing cases involving failure to train). Those types of details, together with any additional elaboration possible, help to (1) “satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds' on which the claim rests,” Twombly, 550 U.S. at 555 n. 3, 127 S.Ct. 1955 ; and (2) “permit the...